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The Significance of HRW’s New Call to Prosecute Bush Administration Officials for Torture

5:01 pm in Military, Terrorism, Torture by Jeff Kaye

Human Rights Watch (HRW) released a new report Tuesday. As they stated in the press release announcing the 107-page report, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees” (HTML, PDF), there is “overwhelming evidence of torture by the Bush administration.” As a result, President Barack Obama is obliged “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

In particular, HRW singled out “four key leaders” in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of “universal jurisdiction,” which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors’ failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration’s so-called “legal” approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW’s new call. Instead, they demonstrated their obsequiousness by approving Obama’s nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus’s tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus’s testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW’s action.

“Because it really needed to be done,” Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, “following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture.”

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue “universal jurisdiction” prosecutions of U.S. officials for torture.

“I don’t see how there’s a defensible justification that the investigations Durham announced can do that,” Prasow said. “It’s pretty clear that there should be an investigation into the deaths of these detainees,” she added, “but it’s so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn’t be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?” she said, emphasizing the fact that Durham’s investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for “enhanced interrogation” laid out in a number of administration legal memos. The torture, Prasow noted, was “throughout the military” as well, including “hundreds or thousands” tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting “state secrets” to shut down court cases. “But there are other ways of providing redress,” she said, adding that “providing redress is part of international laws.” The HRW report itself states, “Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a “whitewash.” As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe’s fears, saying HRW had “some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important.”

The fight for transparency also makes HRW’s call for prosecutions of high government officials, along with “an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse,” very timely. In a column the other day at Secrecy News — Pentagon Tightens Grip on Unclassified Information — Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes “new safeguard requirements on ‘prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).’”

According to Aftergood, “By ‘grandfathering’ those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.” Even worse (if possible), “the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.”

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”

When one puts together the accelerated emphasis on “state secrets”; the Obama political program of “not looking back” in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama “has not been transparent on the rendition issue, not even saying what its policy is,” according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration’s key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won’t listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in — who knows? — Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

UN Report Documents Secret Detention Practices by U.S., Other Countries

11:23 pm in Uncategorized by Jeff Kaye

Andy Worthington is posting portions of the United Nations’ “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” a detailed, 186-page report issued last February (PDF). As he explains it, he’s "posting the section of the report that deals with US secret detention policies since the 9/11 attacks [section 4 of the original report], in the hope that it might reach a new audience — and provide useful research opportunities — as an HTML document." Andy adds:

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

The report concludes:

In many contexts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions….

Secret detention as such may constitute torture or ill-treatment for the direct victims as well as for their families. As many of the interviews and cases included in the present study illustrate, however, the very purpose of secret detention is to facilitate and, ultimately, cover up torture and inhuman and degrading treatment used either to obtain information or to silence people….

The generalized fear of secret detention and its corollaries, such as torture and ill-treatment, tends to effectively result in limiting the exercise of a large number of human rights and fundamental freedoms, including freedom of expression and freedom of association.

Part One of the report is here. Part Two is linked here. I’ll post the link to Part Three when he uploads it. All links are easy to download HTML.

I’d follow Andy’s advice and download the whole thing, especially as the full details for all the footnotes can only be followed in the original report. He says he’s added what he can in square brackets, and also kindly supplied some hyperlinks — a distinct bonus over the report itself!

The report was prepared by "Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances." The scope of the report is quite large, including 66 countries, including various European states, China, Canada, Iraq, Morocco, Jordan, Saudi Arabia, Sri Lanka, Israel, Libya, Zimbabwe, Sudan, and many more.

The UN experts’ conclusions were criticized by a number of countries, including some grumbling over the report’s "methodology" from Eileen Donahoe, U.S. ambassador to the Human Rights Council. As Worthington noted in his original story on the report on June 15:

Despite the experts’ hopes, Deutsche Welle noted that a detailed questionnaire that experts sent to the UN’s 192 member countries was only answered by 44 of those countries, and, moreover, “Of these, not one admitted to the existence of secret prisons. The report’s authors depended on independent sources for their investigation and many countries denied them any kind of access to relevant materials or sources.”

The article also noted, “During the debate, China, Russia, Pakistan, Sri Lanka, Syria, Algeria and other African nations denied that any secret detention facilities existed on their territory.” Revisiting the complaints they made when the report was first published, “They accused the report’s authors of sloppy research, of overstepping their mandate and of compiling the report without being commissioned to do so by the UN Human Rights Council"….

Nevertheless, reflecting on the discussion, Martin Scheinin told IPS, “It went better than expected. The report has been very controversial and now there appears to be acknowledgement that the issue is serious enough not to be trivialized by procedural filibustery.”

While the UN experts were dismayed over the U.S. failure to close Guantanamo, as promised by President Obama, they reportedly were somewhat understanding, in that they believed "The [U.S.] government is unable to do anything when the legislature prohibits part of the options available: namely taking a single person from Guantanamo to the mainland United States." Maybe the report’s authors were simply pleased the U.S. had not opposed the report in general. Given the fact that in the past year new secret prisons have been revealed at both Guantanamo and Bagram Air Base, the role of the current administration in relation to secret detention sites and abuse of prisoners in U.S.-run secret prisons, and those of its allies, like Iraq, remains the least reported scandal of the Obama years.

The UN report on secret detentions in the name of "counter-terrorism" was hardly reported by either the U.S. press or the blogosphere. This is not a subject fit for discussion in the era of Obama. While part of the country chokes on a diet of corporate-supplied oil swill, the military-industrial-technical might of the country is engaged in military adventures and empire-building that is bankrupting the nation, and sowing ill-will world-wide.

What the UN report also demonstrates is that the U.S. practice of holding "ghost prisoners" in undocumented and hidden prisons is by no means unusual, that in a world run by corrupt elites and nationalist dictators dreaming revanchist dreams, and running ethnic cleansing enterprises, the practice of secret detention has a wide dissemination. In this we can see the U.S. is only one among many malefactors, if perhaps more responsible (or more cynical) for the breadth of their enterprise, their use of allies utilizing secret prisons for the rendition program, and their long practice of such detentions, going back to the secret backing for Operation Condor, the kidnapping-assassination-secret detention program in South America in the 1970s. (See the article Operation Condor: Deciphering the U.S. Role, by historian J. Patrice McSherry.) Condor is specifically singled out in the UN report as a precursor to the current practice of secret detentions in a number of countries.

According to an IPS article on the report, "The study’s recommendations included an explicit prohibition of secret detention, and the keeping of clear detention records, even at times of armed conflict, as stipulated by the Geneva Convention on the treatment of prisoners of war." Both the report itself and its recommendations should be broadcast widely and well. I thank Andy Worthington for his tireless pursuit of the issue of prisoners held without legal standing, as his long reporting on Guantanamo demonstrates.

Declassified Document: Kissinger Blocked U.S. Protest on South American Assassinations

1:58 am in Uncategorized by Jeff Kaye

A controversy has simmered for some years over the role of the United States, and particularly of its then-Secretary of State Henry Kissinger, in the actions surrounding Operation Condor. Condor was an assassination and torture plan implemented by a number of South American countries, braintrusted by Pinochet’s Chile.

A new FOIA release, courtesy of the National Security Archive, shows that only five days before former high-ranking Allende official, Orlando Letelier, and his U.S. assistant, Ronnie Moffit, were assassinated by Chile’s notorious DINA secret service in Washington, DC, a September 16, 1976 State Department cable from Henry Kissinger told his assistant secretary of state for Inter-American affairs, Harry Shlaudeman, to cancel a formal demarche to the Uruguayan government, protesting the assassinations and other activities of Operation Condor. The cable was followed four days later by instructions from Shlaudeman to numerous South American U.S. embassies to forego any protests regarding Condor policy, offering the excuse that Condor appeared to be inactive.

Yet, only the next day, a Condor assassination took place in the streets of Washington, DC, when a car bomb blew up Letelier and Moffitt. According to British historian, Kenneth Maxwell, the U.S. government was aware of Operation Condor, and even "that a Chilean assassination team had been planning to enter the United States." A flap over Maxwell’s favorable review in the journal of the Council of Foreign Relations (CFR), Foreign Affairs of Peter Kornbluh’s book The Pinochet File: A Declassified Dossier on Atrocity and Accountability, led to Maxwell’s resignation from the CFR some months later.

See Maxwell’s account in "The Case of the Missing Letter in Foreign Affairs: Kissinger, Pinochet and Operation Condor," PDF. Today, Kornbluh is a Senior Analyst at the National Security Archive, and edited the introduction to the documents on Kissinger and Operation Condor.

What is Operation Condor?

According to a cable to FBI headquarters from FBI agent Robert Scherrer, who previously had worked with Paraguayan police in intelligence gathering on leftists, Operation Condor was work of "cooperating services in South America in order to eliminate Marxist terrorists and their activities in the area…. Chile is the center for Operation Condor, and in addition it includes Argentina, Bolivia, Paraguay and Uruguay. Brazil has also tentatively agreed to supply input for Operation Condor."

Scherrer, who later captured Letelier and Moffitt’s killer, continued:

A third and more secret phase of Operation Condor involves the formation of special teams from member countries to travel anywhere in the world to non-member countries to carry out sanctions, [including] assassination, against terrorists or supporters of terrorist organizations from Operation Condor member countries. For example, should a terrorist or a supporter of a terrorist organization from a member country be located in a European country, a special team from Operation Condor would be dispatched to locate and surveil the target. When the location and surveillance operation has terminated, a second team from Operation Condor would be dispatched to carry out the actual sanction against the target. Special teams would be issued false documentation from member countries of Operation Condor.

According to a 2005 BBC story, greater documentary evidence came to light in 1992, thanks to the chance discovery of a Paraguayan judge. "The archives counted 50,000 persons murdered, 30,000 "desaparecidos" and 400,000 incarcerated" (link).

The participation of U.S. military and intelligence agencies in facilitating Condor have been slow to surface, but there are some. In October 1978, a State Department cable from U.S. Ambassador to Paraguay Robert White, to Secretary of State Cyrus Vance, noted that the intelligence chiefs in Condor kept in touch with each other through encrypted messages sent through keep in touch with one another through "a U.S. communications installation in the Panama Canal Zone which covers all of Latin America." White told Vance that since "there is [a] likelihood Condor will surface during Letelier trial in the U.S…. it would seem advisable to review this arrangement to insure that its continuation is in U.S. interest."

Further declassifications of the Scherrer memo have shown that the Pentagon had quite detailed information about the mobilizations behind Condor operations.

Most recently, just yesterday, the Los Angeles Times, with Andrew Zajac and David S. Cloud reporting, described the response to the latest revelations surrounding Kissinger’s role in letting Operation Condor proceed:

"The document confirms that it’s Kissinger’s complete responsibility for having rescinded a cease-and-desist order to Condor killers," said Kornbluh, author of a 2004 book on Chilean dictator Augusto Pinochet.

In a statement, Kissinger said Kornbluh "distorted" the meaning of the cable and said it was intended only to disapprove a specific approach to the Uruguayan government, not to cancel the plan to issue warnings to other nations in the Condor network.

Former State Department officials who worked under Kissinger during that period now say that his cable did interrupt the U.S. effort to rein in Operation Condor, not just with Uruguay but with other countries in the region.

Assassinations, Then and Now

The Kissinger/Condor revelations come at a time with the issue of U.S. assassinations abroad have taken center stage. There is the ongoing controversy over whether the United States has a legal right to conduct "targeted killings", i.e., murders, by pilotless drones in Afghanistan and elsewhere. These drone killings have left a trail of assassinations of purported Al Qaeda leaders, and hundreds of innocent civilians dead, and are believed to be alienating support for U.S. policy in that region.

Even more, reports of CIA and Joint Special Forces assassination squads, given the green-light by former President George W. Bush, and approved by his successor, Barack Obama, have also surfaced. Marcy Wheeler has followed the story in a number of recent articles. There was also the explosive tale by Seymour Hersh, that alleged that there was a special assassination squad attached directly to the office of Vice President Cheney.

The history of the United States is not one generally known to its average citizen. It involves the support and engagement in the use of torture, assassination, and covert interventions into the sovereign affairs of scores of other nations over the course of many decades, from Operation Gladio to Operation Condor. This policy has culminated in 2001-2003 with the invasions of Afghanistan and Iraq. Today, over a quarter million U.S. troops are in that region, and the United States has documented use of torture and assassination as a matter of state policy.

President Obama came to office promising change and greater transparency. He has not lived up to this promise, and it may be that no commander-in-chief can do so, lacking from the populace itself a determination to uproot the militarist mind-set that occupies the programmatic operations of much of the government. But on the other hand, Obama has not indicated any appetite to appeal to the people on these issues, and instead follows the policies of his generals and admirals, and the spooks who populate the vaunted IC ("Intelligence Community".

The military and intelligence sectors of the government and the economy have grown unimaginably powerful. It is not an exaggeration that the actions of the U.S. government have made any claims of benefit in its activities abroad suspect. It is up to citizens of this country to take its democracy back, and hold its government accountable for what it has done.